Labor's Constitution of Freedom

Abstract

According to the standard story, the basic structure of modern constitutional law emerged from a clash between two great constitutional visions: the laissez-faire constitutionalism of the so-called Lochner Era and the progressive vision concisely summarized in footnote four of United States v. Carolene Products. The standard story omits a third great constitutional vision: labor's constitution of freedom. In the early twentieth century, American workers advanced their own interpretations of the Constitution, often in opposition to those of the Supreme Court. Workers did not wait for judicial approval to put their constitutional vision into practice. Having declared laws unconstitutional, they endeavored to strike them down through noncompliance and direct action. The article begins by setting forth a theoretical model of constitutional insurgency, focusing on the roles played by popular rights consciousness, direct popular power, and professional legal representation in achieving constitutional change. It then presents a detailed case study of constitutional insurgency. In January of 1920, the Kansas state legislature enacted the Kansas Industrial Court Act, the most ambitious piece of American labor legislation prior to the Wagner Act. Although the Industrial Court ruled in favor of workers more often than not, the American Federation of Labor declared the law unconstitutional under the Thirteenth Amendment, and ten thousand Kansas coal miners staged a four-month winter strike “against the political powers of the state of Kansas, monopoly, [and] the industrial court law.” The article tells the story and examines the dynamics of this insurgency from the level of the miners’ local unions on up to the United States Supreme Court.

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